Bragesh and Bragesh

[2019] FamCA 1017

FAMILY COURT OF AUSTRALIA

BRAGESH & BRAGESH [2019] FamCA 1017

FAMILY LAW – CHILDREN – where the mother no longer seeks a finding that the father presents as an unacceptable risk of harm to the children by way of sexual abuse – where the Court would not make such a finding on the evidence – final consent orders on the majority of issues presented to the Court on the first day of trial –final orders, mostly by consent, made in the best interests of the children.

Family Law Act 1975
APPLICANT:	Ms Bragesh

RESPONDENT: Mr Bragesh

FILE NUMBER: LEC 426 of 2017

DATE DELIVERED: 2 December 2019

PLACE DELIVERED: Lismore

PLACE HEARD: Lismore

JUDGMENT OF: Baumann J

HEARING DATE: 2 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms P Decle

SOLICITOR FOR THE APPLICANT: Parker & Kissane

COUNSEL FOR THE RESPONDENT: Mr G Jauncey

SOLICITOR FOR THE RESPONDENT: Macquarie Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Keyworth Harris & Lowe Family Lawyers

Orders

1. That the father and the mother are to have equal shared parental responsibility for all major long term decisions regarding the care, welfare and development of the children, X born … 2013 and Y born … 2016 (“the children”).

2. That in their exercise of their parental responsibility, the parents shall consult with each other about all matters concerning the children’s long term care, welfare and development including but not limited to matters concerning:

   (a)health and medical needs;

   (b)education including selection of the school the child is to attend;

   (c)religion; and

   (d)any changes to a parent’s living arrangements that would make it significantly more difficult for the children to live with or spend time with the other parent.

3. That notwithstanding the provisions of Orders 1 and 2:

   (a)the mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her; and

   (b)the father shall be responsible for the daily care, welfare and development of the children when they is living with or spending time with him.

4. That the children shall live with the mother.

5. That the children shall spend time with the father as agreed by the parents in writing, but in the absence of agreement, as follows:

From date of final orders until the end of January 2020

(a)In B City, from 10.00am until 5.00pm on Saturday, 21 December and from 10.00am until 2.00pm on Sunday, 22 December 2019;

(b)In B City from 10.00am until 5.00pm on Saturday, 4 January 2020 and from 10.00am until 2.00pm on Sunday, 5 January 2020;

(c)In B City from 10.00am until 5.00pm on Saturday, 18 January 2020 and from 10.00am until 2.00pm on Sunday, 19 January 2020; and

(d)For the purpose of Order 5(a) above, time is to be supervised by Ms F.

Commencing in term one (1) in 2020

(e)In D City:

(i)on two (2) weekends during each of terms one (1), two (2), three (3) and four (4) in 2020 to be agreed by the parents but in the absence of agreement time shall take place on the third weekend and the sixth weekend of each term from 12.00pm on Saturday until 3.00pm on Sunday; and

(ii)On the first weekend of the Summer school holidays from 12.00pm on Saturday until 3.00pm on Sunday.

(f)In Sydney, from 9.00am until 5.00pm on Saturday, 4 April 2020 with the father to pay $1,500 towards the mother and children’s travel costs and changeover at Suburb E Contact Centre;

(g)In Sydney, during the Autumn and Winter school holiday periods in 2020:

(i)from 9.00am until 5.00pm on Friday, 17 April 2020 and Friday, 10 July 2020;

(ii)from 9.00am on Saturday, 18 April and Saturday, 11 July 2020 until 5.00pm the following day;

(iii)from 9.00am until 5.00pm Monday, 20 April 2020 and Monday, 13 July 2020; and

(iv)with the father to provide the mother with fourteen (14) days’ notice if he is unable to spend time with the children in Orders 5(g)(i) and (iii);

(h)       In Sydney, during the Spring school holiday period in 2020:

(i)from 9.00am until 5.00pm on the 1 October 2020;

(ii)from 9.00am until 5.00pm on 2 October 2020; and

(iii)with the father to provide the mother with fourteen (14) days’ notice if he is unable to spend time with the children in Orders 5(h)(i) and (ii).

(i)In Sydney, during the Summer school holiday period commencing in December 2020:

(i)from 9.00am until 5.00pm on 5 January 2021;

(ii)from 9.00am until 5.00pm on 6 January 2021;

(iii)from 9.00am on 7 January 2021 until 5.00pm on 10 January 2021;

(iv)from 9.00am until 5.00pm on 17 January 2021;

(v)from 9.00am until 5.00pm on 18 January 2021;

(vi)from 9.00am on 19 January 2021 until 5.00pm on 22 January 2021; and

(vii)with the father to provide the mother with fourteen (14) days’ notice if he is unable to spend time with the children in Orders 5(i)(i)(ii)(iv) and (v);

Commencing in term one (1) in 2021 and continuing thereafter

(j)In D City:

(i)on two (2) weekends during each of terms one (1), two (2), three (3) and four (4) in 2021 to be agreed by the parents but in the absence of agreement time shall take place on the third weekend and the sixth weekend of each term from 12.00pm on Saturday until 3.00pm on Sunday; and

(ii)From 12.00 noon Saturday to 3.00pm Sunday on the first weekend of the Summer school holiday period.

(k)In Sydney, during the Autumn, Winter and Spring school holiday periods in 2021 from 9.00am on the first Friday until 5.00pm on the second Wednesday of the school holidays;

(l)In Sydney, during the Summer school holiday period commencing in December 2021:

(i)from 9.00am on 5 January 2022 until 5.00pm on 12 January 2022; and

(ii)from 9.00am on 16 January 2022 until 23 January 2022.

(m)In Sydney, during the Summer school holiday period commencing in December 2022 and thereafter from 9.00am on 5 January 2023 until 5.00pm on 19 January 2023 and each year thereafter on the same days in January;

(n)In Sydney, during the Autumn, Winter and Spring school holiday periods in 2022 and continuing thereafter rom 9.00am on the first Friday until 5.00pm on the second Friday of the school holidays.

1. That notwithstanding any other order, unless otherwise agreed by the parents in writing:

   (a)the children shall not spend time with the father on the weekend that includes Mother’s Day provided that if Mother’s Day falls on a scheduled weekend for the purpose of Order 5 above, the father shall spend time with the children on the following weekend instead; and

   (b)the children shall spend time with the father on the weekend that includes Father’s Day, provided that if Father’s Day does not fall on a scheduled weekend for the purpose of Order 5 above, this time shall be counted as one of the scheduled weekends that the children shall spend with the father pursuant to Order 5.

2. That unless otherwise provided for in these Orders or agreed by the parents in writing:

   (a)until the Autumn school holidays in 2021, changeover at the commencement and conclusion of the children spending school holiday time with the father in Sydney shall take place in Sydney and thereafter the father shall collect the children from B City at the commencement of school holidays and the mother shall collect the children from Sydney at the conclusion of time;

   (b)changeover in B City shall take place at B City Children's Contact Centre or if that is not available then at the foyer of the B City Club;

   (c)Changeover in D City shall take place at D City Contact Centre or if that is not available then at “J Place”; and

   (d)Changeover in Sydney shall take place at Suburb E Contact Centre and if that is not available then at Suburb G Club.

3. That the parents each complete an Advanced Triple P Parenting Course for the parents of the children’s ages and that this course be undertaken in person and before a move to overnight time.

4. That the parents undertake a Circle of Security Course and a Parenting Orders Course/Program (or its New South Wales equivalent).

5. That the children shall both communicate with the father by telephone or other electronic device as agreed by the parents in writing, and in the absence of agreement:

   (a)between 4.00pm and 4.30pm each Saturday;

   (b)between 7.00am to 7.30am on 25 December each year;

   (c)between 7.00am and 7.30am on the birthday of each of the children;

   (d)between 7.00am and 7.30am on father’s Day unless spending time with the father pursuant to these Orders;

   (e)between 4.00pm to 4.30pm on the day prior to the commencement of each school term;

   (f)at any time that the children reasonably request;

   (g)for the purpose of such communication:

   (i)except where the children request the communication, the father is to initiate the communication with the children;

   (ii)where the children request the communication, the mother is initiate the communication; and

   (iii)the mother shall take all steps that are reasonably practicable to prepare the children to communicate with the father and facilitate the children being in a private space to participate in the communication.

6. That the children shall communicate with the mother by telephone or other electronic device as agreed by the parents in writing, and in the absence of agreement:

   (a)at any time that the children reasonably request; and

   (b)during any time that the children are spending three (3) or more consecutive  nights with the father between 6.00pm and 6.30pm every third night.

7. That the father shall be entitled to attend any school and/or child care event and/or extra-curricular events that the children shall participate in and which parents are permitted to attend, provided that the father gives the mother at least seven (7) days’ notice in writing of his intention to do so.

8. That the father shall be at liberty to send gifts/cards/written communication to the children.

9. That this Order be authority to any educational authority or institution for either parent to obtain, at that parent’s request and expense, copies of any information, progress and other reports, photographs, certificates and awards, including but not limited to, activities, events, attendances and other information that is relevant to each of the children’s care, welfare and development.

10. That this Order be authority to any medical or allied health practitioner for either parent to obtain, at that parent’s request and expense, information and/or copies of any medical or other reports, photographs, or documentation, including but not limited to, any treatment, attendances or other information that is relevant to each of the children’s care, welfare and development.

11. That the mother and father shall:

    (a)keep the other parent informed at all times of their residential address and mobile contact telephone number and notify the other party of any change within twenty four (24) hours;

    (b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who either of the children attends upon; and

    (c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by either of the children.

12. That the parents shall communicate in ways that are agreed between them in writing, but in the absence of agreement:

    (a)by email in relation to matters that are not time sensitive or a matter of emergency; and

    (b)by telephone in relation to matters that are time sensitive or a matter of emergency.

13. That during the time the children are with either parent, that parent shall:

    (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;

    (b)speak of the other parent respectfully;

    (c)not denigrate or insult the other parent and not question the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and

    (d)not discuss or disclose to the children any documentation passing between the parents or their legal representatives.

14. That the mother and father are each restrained from physically disciplining the children or allowing any other person to physically discipline the children.

15. That the mother shall be restrained from causing either of the children from attending upon Ms H in her private capacity without the prior express agreement of the father in writing.

16. That within fourteen (14) days, both parents shall take all reasonable steps to arrange for either Dr K, Ms L or another agreed Psychologist with experience with children in the B City area to work with the parents as may be required to support the transition of the children spending unsupervised time with their father provided that the parents shall give to the appointed Psychologist prior to the first appointment a joint letter setting out the purpose of the engagement; an agreed background of parenting issues concerning the children and a copy of:

    (a)the family reports dated 25 August 2018 and 27 September 2019;

    (b)Ms M’s report dated 20 September 2019; and

    (c)Reasons for Judgment delivered by the Honourable Justice Baumann on 2 December 2019.

17. That the father shall not leave the children in the care of another person overnight until the commencement of December 2020 without the prior express agreement of the mother in writing.

18. That each parent, Ms Bragesh born … 1983 and Mr Bragesh (also known as … and …) born … 1979), their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (“the Act”), from removing or attempting to remove or causing or permitting the removal of the children, X born … 2013 and Y born … 2016 from the Commonwealth of Australia for a period of five (5) years and it is requested that the Australian Federal Police give effect to this Order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period or until the Court orders its removal.

19. That if there is any dispute about the interpretation, implementation or enforcement of these Orders, the mother and the father are to take the following steps:

    (a)The mother and father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or

    (b)The mother and father shall participate in family dispute resolution with a person authorised under Section 10G of the Act.

20. That before any application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parents, the mother and the father are to take the following steps:

    (a)The mother and father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or

    (b)The mother and father shall participate in family dispute resolution with a person authorised under Section 10G of the Act.

THE COURT ORDERS ON A FINAL BASIS:

1. That the children spend time with the father In Sydney during the Spring school holiday period in 2020 from 9.00am Saturday, 3 October 2020 until 5.00pm on the following Tuesday.

2. That the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bragesh & Bragesh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT LISMORE

FILE NUMBER: LEC 426 of 2017

Ms Bragesh

Applicant

And

Mr Bragesh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. Today was the culmination of a journey commenced, in a sense, when these parties separated in November 2016, over three years ago.  Before the separation, the parents of X, who was born in 2013, and Y, who was born shortly before separation in 2016, had commenced a relationship initially online in October 2009; engaged and commenced cohabitation in Sydney in April 2010, before marrying in 2011.  It is abundantly apparent from all the material that the parents – the father aged nearly 40 and the mother 36 years of age now – come from quite different cultural backgrounds.  The father was born in Country N and immigrated to Australia at around about the age of 27/28.  The mother, although born in Country R, has been raised as an Australian by family in northern New South Wales.  Separation was not, it seems, particularly difficult in that, contrary to what might be suggested by the mother’s psychologist, I do not see the mother as “fleeing” the home.  In fact, the father assisted her and did not oppose her moving from Sydney, where she was then living with the children and the newborn, Y, to the area where she had been brought up at Suburb S near a suburb of B City.

2. When she did that, of course, she was able to have the support of her mother who adopted her when she was eight weeks of age, and who is in every sense a committed grandmother and committed mother to her daughter.  There was a period, for reasons not tested at the hearing, of significant lack of time between the children and the father.  The evidence suggests why that might be the case, but the reality is that until Orders were made by Judge Coates in the Federal Circuit Court of Australia for monthly supervised time in September 2018 (which meant that the first visit did not take place until shortly thereafter), the father’s time with the children since separation had consisted of only two visits in mid-2017, supervised by the mother and the maternal grandmother.

3. That, of course, was totally insufficient time for X to maintain his relationship with his father and for Y to develop a relationship with his father.  The evidence is that since Orders were made by Judge Coates for supervised time, there had been approximately 13 visits and all have been attended by the parties.  In a recent visit, the paternal grandmother and, I think, the maternal aunt, joined the father in a visit.

4. What has shaped the cautious approach the Court has taken in this matter has been concerns the mother has expressed about X having been sexually abused by the father.  She has maintained that position and she has done so in circumstances where it has to be assumed she did not believe there was any innocent explanation for the comments made, she says, to her and her mother by the child, and until such risk could be established, it was not possible to move forward in this matter. 

5. The mother did not seek to establish that the father was an unacceptable risk by the time the matter came before me for trial.  There is, of course, a curious disconnect with the position identified by the mother in a case outline filed on 27 November 2019 where the mother says:

   “The mother concedes that there is insufficient evidence before the Court to enable the Court to make a finding that the father poses an unacceptable risk of harm to the children”.

   and the evidence relied upon by the mother and her mother, as set out in their Affidavits filed less than two weeks prior to that case outline.  The use of the words “insufficient evidence” have a legal flavour to them.

   I note that when this matter first came before me in June 2019 from the callover of cases awaiting allocation of trial in Brisbane, I raised shortly thereafter with Counsel then for the mother and Counsel still, as then, for the father, whether this was a matter appropriate for a discrete hearing as to risk.  I was persuaded by the mother’s position that it was not.  As I recall it, the father’s position was that it was appropriate for a discrete hearing.  So then, again, from June 2019 until now, some six months later, the spectra of sexual abuse by X by the father has continued to hang over the father’s head, as well as shaping the arrangements which have been made.

1. I do not propose to say much about the sexual abuse allegations other than they were investigated by police and the Department of Child Safety.  There is no forensic evidence that would support it, but that is not unusual.  The comments attributed to the child by the mother are, essentially, uncorroborated other than from her own mother, but I do not suggest, on the evidence, that the words were not spoken by the child.  I think, more likely, the words have an innocent explanation and that it was not appropriate, in the absence of other issues, for the Court to find that there is an unacceptable risk, a very serious finding against the father in this case.  So I would not want it be thought that – and the Court would not make the Orders I am now being asked to make – if it held, notwithstanding the mother’s concession of the father’s consistent and continual denials, that the Court had some residuary concerns about whether the father was an unacceptable risk to these children.  I would not have found so on the evidence and the mother sought it not be tested that he was.  Accordingly, the parties have engaged today, I think, genuinely and with the advice of experienced Counsel and solicitors, in understanding how we might move from the position which these children, now aged six and three, have found themselves in, really, through no fault of their own.

2. Progressing further, there are some clear practical issues.  The father lives, works and has family support in Sydney.  The mother lives, works and has family support in the B City area.  I pay credit to the parties and their lawyers in shaping the orders which have been presented almost entirely by consent to the Court today.  Interestingly, both parties asked the Court to make an order for equal shared parental responsibility.  I can only assume that they have been told that when a Court makes an order for equal shared parental responsibility, they are required on major long-term decisions to consult and seek to reach agreement.

3. The major issues referred to at paragraph 2 of the Orders sets out the major issues generally required to be considered, although I note to date that there seems to be little dispute that X continues to go to school at the Q School.

4. There have in the past been issues in relation to the child being counselled by a Ms H, who seems, at one stage, to have been perhaps a counsellor at the child’s school as well.  There is no evidence that Ms H ever had the benefit of a perspective from the biological father.  The child, X, seems to have had some 15 or 16 consultations.  The parties agree that if the child or, for that matter, Y, were to have a need for counselling, then they would seek, pursuant to Order 21, to arrange for a qualified psychologist in the B City area to work with the parents and/or the children.

5. The mother has had significant counselling from Ms M.  That consisted of, it seems, some 10 visits under a mental health plan, and some 38 visits funded by Victims Services New South Wales.  It seems that the basis upon which funding may have been provided by Victims Services New South Wales is the mother’s assertion that she had been the subject of significant controlling domestic violence by the father and, it seems, on her evidence, the father’s extended family.  There are no domestic violence orders in place and I am not in the position to make any findings about that history other than to observe, as I do, that these parties’ cultural differences and, it seems, the expectations upon the mother may have been a confronting situation for her, particularly bearing in mind that there was a period at the start of the relationship where they actually lived in the home of the paternal grandparents.

6. Nearly all the Orders I am asked to make now are by consent.  I am necessarily required by reason of the Family Law Act1975 (“the Act”) to consider if they are in the best interests of the children.  Courts have traditionally, and for good reason, given significant weight when making consent orders to the expressed positions of the parties reflected by their execution and/or support of consent orders.  That is because once orders have been made with all the requirements that flow from such orders, including the responsibilities and obligations and risks, if they fail to comply without reasonable excuse, the Court is entitled to accept that not only will they comply with the terms of the order, but the tenor of the orders.  No one could want orders to work better in the children’s interests than the parents themselves.

7. So when I am provided with a process of integration of the father back in the life of these children in a more meaningful way, something which the children would benefit from, having a meaningful relationship with the father, I am confident that they have considered a number of the practical difficulties that may arise.  That is reflected, to their credit, in picking an area of D City as the location, not necessarily convenient to the parties, but in the children’s best interest, for what are agreed to be the two periods of time during school terms that the children will spend time with the father.  They have essentially agreed on the way in which block time during school holidays should be achieved, although the father will not have time with the children in the B City area during school terms by which he may be able to easily integrate in their school life.

8. In many ways, the orders now being proposed fit within the description of substantial and significant time, even though there is an order for equal shared parental responsibility, let me make it clear that the practical difficulties of where the parents live would make equal time impractical, or not reasonably practicable, to use the terminology of the Act. If the mother is genuine in her concession to the Court, then these orders have every capacity to work well in the best interest of the children. Only time will prove whether that is the case or not. I take on board that she is an educated person. I take on board that she has had the benefit of competent legal advice which would have, no doubt – and I am prone to tell people in these sorts of cases – it is only the rarest of cases that the Court could ever find, even to the civil standard of proof that a certain event occurred.

9. So there is always in the mind of some parents an uncertainty.  However, the evidence of the father, his persistence and that of his family in seeking to maintain a relationship with his children, in my view, reflects very positively on him and his desire to be a part of their life, and the mother should give him credit for that.  The only other issue I choose to make a comment on is the agreed Airport Watch List.  It is apparent from the initial consultation between the mother and Ms M that one of the major concerns the mother had when she commenced counselling, not long after arriving in this area, was the fear that the children would be removed from her by the father and/or his parents, and taken to Country N.  This theme of the mother’s concern that her role as the primary carer was under threat permeate through many of the notes I have read and comments made by her therapist.

10. As best as can be achieved, these children will not be able to leave Australia in the care of either parent to anywhere, unless and until both parents agree as set out in Section 65Y of the Act. Hopefully that will give the mother some comfort that the unsupervised time which she has agreed to does not put the children at risk, a risk that the father said never actually existed, of the children being removed from Australia and taken to Country N, never to return. I thank the Independent Children’s Lawyer for the efforts in this matter over a long period of time. Ms P, the family report writer, made herself available today to have discussions with the parties and her guidance and, no doubt, experience over both two reports and many, many years as a Family Consultant, would, I am sure, have been invaluable to the parties.

11. Noting that the parties have agreed, I think, sensibly, to adopt a proposal from the Court that, in respect of holidays, for what is the end of term four Summer holidays, that by January 2023 the children’s time with the father will move to a two-week block commencing 5 January a dispute still exists as to how holidays should increase from now.  I would adopt the mother’s proposal for two one-week blocks as set out, and that, of course, has been preceded by other arrangements.  In respect of two or three days which was a dilemma for the parties set out at paragraph 5(h), my view is that it is important for X to be able to have the extended time with his father, and I, as best I can, think that Y would cope with that because he will be with his brother.  He will, by that time, although not had ideal length of time, he will cope, in my assessment on the evidence, he not being a child with any significant developmental issues, as had been identified for young X.  So I make it three days.

12. Unless there is anything else, I make the Orders as agreed.  I would ask that the orders do indicate which orders – I think it is only one now was not agreed with my order.  I do not propose to make a notation other than in these terms:

    “When these orders were made by consent, the presiding juridical officer Baumann J delivered reasons setting out why, in the Court’s view, the orders are in the best interest of the children.”

13. I do that just in case, as I have seen in my practice over the years, these orders turn up at some Court in the middle of nowhere and someone tries to reframe why they were done.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 2 December 2019.

Associate:

Date:  29 January 2020